Kobach: The District of Columbia Court Abuses its Power to Save DACA

A few days ago, Judge John Bates of the U.S. District Court for the District of Columbia issued a decision that was truly shocking.

He ruled not only that President Trump is prohibited from repealing President Obama’s DACA (“Deferred Action for Childhood Arrivals”) executive amnesty for illegal aliens, but also that President Trump must continue to give the amnesty to new illegal aliens in the future. In other words, the unlawful and informal executive action of President Obama is something that President Trump is compelled to carry out against his wishes in the future. Never mind that one President cannot bind his successor to follow his executive decrees and that DACA itself is a violation of federal law.

Although two other judges in San Francisco and New York City had previously issued erroneous decisions in favor of DACA in the past, this one was the first decision in which a judge declared that the DACA program must be extended into the future, regardless of the wishes of the current president.

Judge Bates’s decision was extraordinary. As I have explained in a prior column, the DACA amnesty violates both federal law and the United States Constitution for multiple reasons.

DACA allows virtually any illegal alien up to the age of 31 (as of June 15, 2012, when it was announced) who claims that he entered the United States before the age of 16 to gain “deferred action” and lawful presence in the United States. The alien also becomes eligible for employment authorization. In practice, today illegal aliens up the age of 37 are getting the amnesty. It’s not limited to “children” as the Left loves to imply

The most blatant violation of federal law is found in 8 USC 1225(b)(2). This statute requires that any alien an ICE officer determines to be inadmissible “shall” be placed in removal proceedings. Congress enacted this law in 1996 to stop the “catch and release” policies of the Clinton Administration. But DACA forces ICE agents to break this law. In 2012, in the case of Crane v. Napolitano, I represented ten ICE agents who sued the Obama Administration to stop DACA. Although the Fifth Circuit Court of Appeals eventually ruled that the ICE agents didn’t have standing, the district court in the Northern District of Texas had already held that DACA likely violated the law.

However, even if the DACA amnesty didn’t violate 8 USC 1225(b)(2), it would still violate the Administrative Procedure Act (APA). In order to implement a program like DACA, Department of Homeland Security would have to promulgate a formal regulation (or “rule”), with notice and public comment, under the requirements of the APA. The Fifth Circuit came to this conclusion in Texas v. United States, a case which resulted in an injunction halting Obama’s second executive amnesty (DAPA, which was based on the same theory as DACA). And the Supreme Court sustained the Fifth Circuit’s decision, splitting 4-4 (prior to Justice Gorsuch’s arrival on the Court).

In other words, there is no question that DACA violates federal law. Even President Obama stated publicly, prior to his DACA directive, that he had no legal authority to do what he subsequently did. But then the 2012 election loomed, and Obama was looking for ways to motivate his base. At that point, his concern for following the law went out the window.

Fast forward to 2017. DAPA had been struck down as illegal. And Americans had voted for a President who would renew the enforcement of immigration laws and repeal Obama’s lawless actions. Referring to the Texas v. United States decision of the Fifth Circuit, the Trump Administration stated that DACA was illegal for the same reasons that DAPA was illegal. That was sufficient justification to end the illegal amnesty.

Nevertheless, Judge Bates declared in his order that President Trump’s termination of DACA was “arbitrary and capricious because the Department [of Justice] failed adequately to explain its conclusion that the program was unlawful.” Evidently, pointing to a Fifth Circuit decision addressing a nearly identical executive amnesty wasn’t good enough for Judge Bates. He gave the Department 90 days to explain its decision to his satisfaction.

His edict constitutes an extraordinary assertion of judicial power. A federal judge is demanding that President Trump’s Administration more fully justify the decision to end a blatantly illegal program started by President Obama. Ironically, Judge Bates based his decision on the APA — the same APA that the Fifth Circuit had ruled the DAPA amnesty violated.

Never mind that DACA need not even be illegal to be terminated. The fact that it is bad policy is reason enough.

The notion that a president must offer persuasive reasons that meet the approval of a federal judge before he can end the unlawful program of a previous president is truly offensive to the constitutional separation of powers. Especially when the unlawful program is not a statute, not a federal regulation, not even a formal executive order. It is simply a policy decree issued by then-Secretary of Homeland Security Janet Napolitano.

It has no permanence, basis in law, or legitimacy whatsoever. But in the hands of an activist judge, it takes on the full force of law. Few cases so clearly demonstrate the consequences of a judiciary that does not recognize the limits of its own power.

Kris W. Kobach is the elected secretary of state of Kansas. An expert in immigration law and policy, he coauthored the Arizona SB-1070 immigration law and represented in federal court the ten ICE agents who sued to stop Obama’s 2012 executive amnesty. He is also a candidate for the office of governor of Kansas. His website is kriskobach.com.